Benefits Denied to Twins Born 11 Years After Father’s Death

MANHATTAN (CN) — Twins conceived through in vitro fertilization 11 years after the death of their father are not entitled to Social Security survivor benefits, the Second Circuit affirmed Thursday.

In the case at hand, Sharon and Eric MacNeil had only just married in late 1994 when 23-year-old Eric was diagnosed with non‐Hodgkin’s lymphoma. Before undergoing treatment, they decided to preserve some of his sperm.

Eric died on May 24, 1996, at age 24. In June 2007, 11 years after Eric’s death, Sharon underwent in vitro fertilization using the stored sperm. She gave birth to twins on Feb. 14, 2008, and then applied for survivor benefits on Oct. 8, 2009.

She sought court relief after exhausting her administrative remedies, but the U.S. District Court in the Northern District of New York likewise affirmed the denial of benefits.

The Second Circuit affirmed Thursday, saying MacNeil’s “argument misreads Section 4‐1.2, which, by its terms, supplies an expansive definition of child legitimacy but nowhere indicates that it is meant to expand the class of distributees entitled to take from the estate of an intestate decedent temporally.”

Writing for a three-person panel, U.S. Circuit Judge John Walker said that the administrative law judge properly concluded that “provision does not say that a child born after the death of the genetic father may inherit in intestacy, but instead provides the circumstances under which ‘[a] nonmarital child is the legitimate child of his father,’ including, among others, when ‘clear and convincing evidence’ of genetic paternity exists.”

Walker wrote that MacNeil “seeks to isolate one of Section 4‐1.2’s several mechanisms for establishing paternity and to have this subprovision serve as the general intestate distribution rule for children born after a genetic father has passed away, relegating Section 4‐1.1(c) to a provision that governs in the narrow case in which paternity cannot be clearly established. There is no  reason, however, why a distribution rule drastically expanding the class of distributees to include children conceived after the death of their genetic father would be buried in a subparagraph to Section 4‐1.2 when the statute explicitly provides (narrowly) for such a temporal expansion in Section 4‐1.1(c), the preceding section.”

The argument amounts to one that would hinge on the subparagraph of a statutory provision dealing with paternity determinations and would serve to revise the entirety of New York’s intestacy scheme.

“‘Legislative bodies generally do not ‘hide elephants in mouseholes,’” Walker wrote quoting precedent, “and MacNeil has given us no convincing reason to believe that New York’s legislature did just that here.”

The opinion concludes “that New York’s intestacy law, as it existed in 2013 at the time of the agency’s final determination, did not permit children conceived posthumously to inherit via intestacy.”

“This determination, which requires the further  conclusion  that  the  MacNeil  twins’  applications  for  benefits  were properly denied, is dispositive of the present appeal,” Walker added.

In a concurring opinion, U.S. Circuit Judge Gerard Lynch emphasized the scientific context of MacNeil's case.

The reproductive technology at issue here would have been “utterly unimaginable to the drafters of the Social Security Act in the depths of the Great Depression over 80 years ago,” Lynch wrote. “It would therefore make sense, I think, for the Social Security Administration, and members of the relevant congressional committees and their staffs, to devote some thought to the issue.”

MacNeil’s attorney, Hagit Muriel Elul with the firm Hughes Hubbard and Reed, cited this concurrence when reached for comment on the ruling. She said they are evaluating their next steps.

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